South Africa: Bhe and Others v Magistrate, Khayelitsha and Others (2004) AHRLR 212 (SACC
2004)
Bhe and Others v Magistrate, Khayelitsha and Others (2004) AHRLR 212 (SACC 2004)
Nonkululeko Bhe, Anelisa Bhe, Nontupheko Maretha Bhe, Women's Legal Centre Trust v Magistrate,
Khayelitsha, Maboyisi Nelson Mgolombane, President of the Republic of South Africa, Minister for
Justice and Constitutional Development together with Commission for Gender Equality (amicus
curiae) (CCT 49/03); Charlotte Shibi v Mantabeni Freddy Sithole, Jerry Sithole, Minister for Justice and
Constitutional Development (CCT 69/03); South African Human Rights Commission, Women's Legal
Centre Trust v President of the Republic of South Africa, Minister of Justice and Constitutional
Development (CCT 50/03)
Constitutional Court of South Africa, 15 October 2004
Judges: Chaskalson, Langa, Madala, Mokgoro, Moseneke, Ngcobo, O'Regan, Sachs, Skweyiya, Van
der Westhuizen
Extract: Langa with whom Chaskalson, Madala, Mokgoro, Moseneke, O'Regan, Sachs, Skweyiya and
Van der Westhuizen concurred;
Previously reported: (2005) 1 SA 580; 2005 (1) BCLR 1 (CC)
Equality and non-discrimination, status of customary law, constitutionality of primogeniture and
position of extra-marital children
Culture (customary law, 41, 43-45, 80, 82, 87, 90, 113)
Constitutional supremacy (44, 46)
Dignity (racist legislation, 48, 60, 63, 66, 68; primogeniture, 92)
Equality non-discrimination (49; substantive equality, 50; discrimination on the grounds of sex,
primogeniture, 53, 77 , 88, 91; discrimination on the grounds of birth, 54, 59, 93; discrimination on
the grounds of race, 60, 66 ,68; polygamy, 124)
Interpretation (international standards, 51, 55)
Children (discrimination of extra-marital children, 52, 54-59, 79, 93)
Limitations of rights (law of general application justified in a democratic society, 69, 71, 72, 95, 96)
[1.] Two statutes govern intestate succession in South Africa. They are the Intestate Succession Act
81 of 1987 and the Black Administration Act 38 of 1927 (the Act). Section 23 of the Act read with
regulations framed in terms of section 23(10) contains provisions that deal exclusively with intestate
deceased estates of Africans. 2 Estates governed by section 23 are specifically excluded from the
application of the Intestate Succession Act. The regulations were published in a Government Gazette
under the title 'Regulations for the Administration and Distribution of the Estates of Deceased
Blacks' (the regulations).
[2.] The parallel system of intestate succession set up by section 23 and the regulations purports to
give effect to the customary law of succession. It prescribes which estates must devolve in terms of
what the Act describes as 'Black law and custom' and details the steps that must be taken in the
administration of those estates.
[3.] Central to the customary law of succession is the principle of male primogeniture. There are two
main issues in the cases before this Court. The first is the question of the constitutional validity of
section 23 of the Act. The second concerns the constitutional validity of the principle of
primogeniture in the context of the customary law of succession.
[4.] Because of the nature of the issues to be canvassed, the Chief Justice directed the registrar of
this Court to deliver copies of the directions and the two applications for confirmation 6 to the
Chairperson of the National House of Traditional Leaders. 7 The provisions of rule 9 of the Rules of
the Constitutional Court that were in force at the time 8 were also drawn to his attention. No
submissions were, however, received from the House of Traditional Leaders.
[5.] There are three cases before the Court. They were heard together, by direction of the Chief
Justice, since they are all concerned with intestate succession in the context of customary law.
[6.] The first case, Bhe and Others v The Magistrate, Khayelitsha and Others, (the Bhe case) 9
followed a decision by the Magistrate of Khayelitsha and, on appeal, that of the Cape High Court.
The second, Charlotte Shibi v Mantabeni Freddy Sithole and Others (the Shibi case), concerned a
decision of the Magistrate of Wonderboom which was successfully challenged in the Pretoria High
Court. In both cases, the respective Magistrates made decisions on the basis of the relevant
provisions of the legislation governing intestate succession.
[7.] The third case is an application for direct access to this Court brought jointly by the South African
Human Rights Commission and the Women's Legal Centre Trust, respectively the first and second
applicants. They had initially applied to the Pretoria High Court for relief which included the
constitutional invalidation of the whole of section 23 of the Act. Before argument was heard in the
High Court, the order in the Bhe case was referred to this Court for confirmation. Rather than
proceed in the Pretoria High Court, the two applicants then applied for direct access to this Court for
the relief which they had initially sought in the High Court. The application for direct access was
granted by this Court on 3 November 2003 and the reasons for that decision are set out below.
[8.] I proceed to set out the background in respect to each of the matters before us.
(1) The Bhe case
[9.] This case comes before us as an application for confirmation of an order of the Cape High Court.
It is brought jointly by Nontupheko Maretha Bhe (Ms Bhe), who is the third applicant in this matter,
and the Women's Legal Centre Trust, the fourth applicant.
[10.] Ms Bhe seeks no relief for herself but brings the application in the following capacities: (a) on
behalf of her two minor daughters, namely Nonkululeko Bhe, born in 1994 and Anelisa Bhe, born in
2001; 13 (b) in the public interest, 14 and (c) in the interest of the female descendants, descendants
other than eldest descendants and extra-marital children who are descendants of people who die
intestate. Nonkululeko and Anelisa are the first and second applicants respectively and are the
children of Ms Bhe and Mr Vuyo Elius Mgolombane (the deceased) who died intestate in October
2002. The Women's Legal Centre Trust acted in this application 'in the public interest'.
[11.] In this Court, the first respondent is the Magistrate of Khayelitsha, who appointed the father of
the deceased, Mr Maboyisi Nelson Mgolombane (the second respondent) as representative of the
estate. The President of the Republic of South Africa (the President) and the Minister for Justice and
Constitutional Development (the Minister) are cited as the third and fourth respondents
respectively. The Commission for Gender Equality, a state institution established under section 187
of the Constitution, 18 was admitted as amicus curiae and presented helpful written and oral
submissions to the Court.
[12.] There was only one potentially material factual dispute before the Cape High Court, and that is
whether Nonkululeko and Anelisa Bhe are extra-marital children. Both Ms Bhe and the deceased's
father were agreed that no marriage or customary union had taken place between Ms Bhe and the
deceased. The deceased's father however insisted that the deceased had paid lobolo, an assertion
which Ms Bhe denied. Relying on the rule in Plascon-Evans, 19 however, the High Court approached
the issue on the basis that lobolo had been paid and that Ms Bhe's daughters were accordingly not
extra-marital children.
[13.] Since the question whether or not the two minor daughters of Ms Bhe are extramarital children
bears on their status, reliance on the rule in Plascon-Evans was, in my view, inappropriate. I consider
that the evidence produced is not sufficient to resolve the issue one way or another. It will
accordingly be necessary, for purposes of this judgment, to deal with the effects of extra-marital
birth on intestate succession, from the perspective of the rule of primogeniture and that of section
23 of the Act and the regulations. I return to this issue in due course.
[14.] It was not in dispute that from 1990 the deceased had a relationship with Ms Bhe and they
lived together. He was a carpenter and she a domestic worker. They were poor and lived in a
temporary informal shelter in Khayelitsha, Cape Town. The deceased subsequently obtained state
housing subsidies which he used to purchase the property on which they lived as well as building
materials in order to build a house. He however died before the house could be built. Until his death,
the youngest of the two minor children lived with him and Ms Bhe in the temporary informal shelter.
Nonkululeko was staying temporarily at the home of the deceased's father. The deceased supported
Ms Bhe and the two children and they were dependent on him. The estate comprises the temporary
informal shelter and the property on which it stands, and miscellaneous items of movable property
that Ms Bhe and the deceased had acquired jointly over the years, including building materials for
the house they intended to build.
[15.] After the death of the deceased, the relationship between Ms Bhe and the father of the
deceased deteriorated to the point of acrimony. In spite of the fact that he resided in Berlin in the
Eastern Cape and nowhere near Cape Town, he was appointed representative and sole heir of the
deceased estate by the Magistrate in accordance with section 23 of the Act and the regulations.
[16.] Under the system of intestate succession flowing from section 23 and the regulations, in
particular regulation 2(e), the two minor children did not qualify to be the heirs in the intestate
estate of their deceased father. According to these provisions, the estate of the deceased fell to be
distributed according to 'Black law and custom'.
[17.] The deceased's father made it clear that he intended to sell the immovable property to defray
expenses incurred in connection with the funeral of the deceased. There is no indication that the
deceased's father gave any thought to the dire consequences which would follow the sale of the
immovable property. Fearing that Ms Bhe and the two minor children would be rendered homeless,
the applicants approached the Cape High Court and obtained two interdicts pendente lite to prevent
(a) the selling of the immovable property for the purposes of off-setting funeral expenses; and (b)
further harassment of Ms Bhe by the father of the deceased.
[18.] The applicants challenged the appointment of the deceased's father as heir and representative
of the estate in the High Court. He opposed the application. The Magistrate and the Minister, cited
as respondents, did not oppose and chose to abide the decision of the High Court.
[19.] The High Court concluded that the legislative provisions that had been challenged and on which
the father of the deceased relied, were inconsistent with the Constitution and were therefore
invalid. The order of the High Court, in relevant part, reads as follows:
1. It is declared that s 23(10)(a), (c) and (e) of the Black Administration Act are unconstitutional and
invalid and that reg 2(e) of the Regulations of the Administration and Distribution of the Estates of
Deceased Blacks, published under Government Gazette 10601 dated 6 February 1987 is
consequently also invalid.
2. It is declared that s 1(4)(b) of the Intestate Succession Act 81 of 1987 is unconstitutional and
invalid insofar as it excludes from the application of s 1 any estate or part of any estate in respect of
which s 23 of the Black Administration Act 38 of 1927 applies.
3. It is declared that until the aforegoing defects are corrected by competent Legislature, the
distribution of intestate black estates is governed by s 1 of the Intestate Succession Act 81 of 1987.
4. It is declared that the first and second applicants are the only heirs in the estate of the late Vuyu
Elius Mgolombane, registered at Khayelitsha magistrate's court under reference No 7/1/2-484/2004.
[20.] In this Court no submissions were received from the deceased's father. Helpful submissions
were however received from the Minister, who supported the application for confirmation of the
orders of the High Court and the amicus curiae, the Commission for Gender Equality.
(2) The Shibi case
[21.] The second matter is an application for the confirmation of the order of the Pretoria High
Court. The applicant is Charlotte Shibi (Ms Shibi) whose brother, Daniel Solomon Sithole (the
deceased), died intestate in Pretoria in 1995. The deceased was not married nor was he a partner to
a customary union. He had no children and, when he died, was not survived by a parent or
grandparent. His nearest male relatives were his two cousins Mantabeni Sithole and Jerry Sithole,
the first and second respondents respectively.
[22.] Since the deceased was an African, his intestate estate fell to be administered under the
provisions of section 23(10) of the Act. The Magistrate of Wonderboom decided to institute an
inquiry in terms of regulation 3(2) in order to determine the person or persons entitled to succeed to
the property of the deceased. She did not complete the inquiry, however, deciding to await the
conclusion of a case which was then before the Pretoria High Court and which was later reported as
Mthembu v Letsela and Another. 22 This High Court case concerned a challenge to the constitutional
validity of the customary law rule of primogeniture and of section 23 of the Act.
[23.] When the application in Mthembu was dismissed by the High Court, however, the Magistrate
abandoned the inquiry and, without further notice to Ms Shibi, appointed Mantabeni Sithole as
representative of the deceased estate. Mr Sithole was not required to provide security because of
the size of the estate and the fact that he did not have the means to do so.
[24.] The appointment of Mr Sithole was not a happy one. There were complaints by his relatives,
including his mother, that he was misappropriating the estate funds. The appointment was
withdrawn by the Magistrate who then appointed an attorney, Mr Nkuna, to administer the estate
and to distribute the assets according to customary law. In terms of the liquidation and distribution
account the remaining asset in the deceased estate, an amount of R11,468.02, was awarded to Mr
Jerry Sithole, the second respondent, as the only heir to the estate. The estate was wound up and
finalised and Mr Nkuna was duly discharged as its representative.
[25.] In terms of the system flowing from the provisions of section 23 of the Act and the regulations
framed under it, in particular regulation 2(e), 24 the estate of the deceased fell to be distributed
according to custom. Ms Shibi was, in terms of that system, precluded from being the heir to the
intestate estate of her deceased brother.
[26.] In the High Court Ms Shibi challenged the decision of the Magistrate and the manner in which
the estate had been administered. She sought an order declaring her to be the sole heir in the estate
of the deceased. She also claimed damages and other related relief against the first and second
respondents as well as against the Minister.
[27.] The High Court set aside the decision of the Magistrate and declared Ms Shibi to be the sole
heir. It then issued an order similar to that given by the Cape High Court in the Bhe case, and, in
addition, awarded damages against the deceased's two cousins, that is, first and second respondents
in this case.
[28.] In this Court no submissions were received from the first and second respondents. The Minister
supported the application for confirmation of the orders of the Pretoria High Court as he had done in
respect of the decision of the Cape High Court in the Bhe case.
(3) The South African Human Rights Commission and Another v President of the Republic of South
Africa and Another
[29.] The South African Human Rights Commission is a state institution supporting democracy under
Chapter 9 of the Constitution. Its mandate is, among other things, to 'promote respect for human
rights and a culture of human rights . . . [and] to take steps to secure appropriate redress where
human rights have been violated'. The Women's Legal Centre Trust is a non-governmental
organisation whose stated core objective 'is to advance and protect the human rights of all women
in South Africa, particularly black women who suffer many intersecting forms of disadvantage.' To
this end, it has established the Women's Legal Centre, in order to conduct public interest litigation
including constitutional litigation to advance the human rights of women.
[30.] In bringing the application for direct access, both the South African Human Rights Commission
and the Women's Legal Centre Trust were acting in their own interest as well as in the public
interest. The Women's Legal Centre Trust was also acting in the interest of a group or a class of
people. The respondents are the President and the Minister, first and second respondents
respectively. It was not disputed by the respondents that both the South African Human Rights
Commission and the Women's Legal Centre Trust have standing in these proceedings.
[31.] The relief that the applicants sought is wider than that in the Bhe and Shibi cases above. Apart
from the provisions declared invalid by the Cape and Pretoria High Courts, the applicants in this
matter claim that the whole of section 23 of the Act, alternatively subsections (1), (2) and (6) of
section 23, should be declared unconstitutional and invalid because of their inconsistency with the
Constitution's equality provisions (section 9), 31 the right to human dignity (section 10) 32 and the
rights of children under section 28 of the Constitution.
Direct access
[32.] This Court will grant direct access in exceptional circumstances only. In this case, the Court had
regard to the considerations set out herein. In the first place, the challenged provisions govern the
administration and distribution of all intestate estates of deceased Africans. The impact of the
provisions falls mainly on African women and children, regarded as arguably the most vulnerable
groups in our society. The provisions also affect male persons who, in terms of the customary law
rule of primogeniture, are not heirs to the intestate estates of deceased Africans. Many people are
therefore affected by these provisions and it is desirable that clarity as to their constitutional validity
be established as soon as possible.
[33.] The submissions sought to be made by the applicants relate to substantive issues that were
already before the Court. The direct access application, however, quite helpfully broadens the scope
of the constitutional investigation, given the need to deal effectively with the unwelcome
consequences of the Act in the shortest possible time. The application further adds fresh insights on
difficult issues, including the question of the appropriate remedy.
[34.] From the description of the two applicants, it is clear that they are both eminently qualified to
be part of the debate on the issues before the Court. By reason of the above considerations, this
Court concluded that it was in the interests of justice that the application for direct access should be
granted.
The legislative framework
[35.] For a proper understanding of the issues, it is necessary to set out in full the legislative
provisions which are the subject of the constitutional challenge. Section 23 of the Act provides as
follows:
(1) All movable property belonging to a Black and allotted by him or accruing under Black law or
custom to any woman with whom he lived in a customary union, or to any house, shall upon his
death devolve and be administered under Black law and custom.
(2) All land in a tribal settlement held in individual tenure upon quitrent conditions by a Black shall
devolve upon his death upon one male person, to be determined in accordance with tables of
succession to be prescribed under subsection (10).
(3) All other property of whatsoever kind belonging to a Black shall be capable of being devised by
will.
(4) . . .
(5) Any claim or dispute in regard to the administration or distribution of any estate of a deceased
Black shall be decided in a court of competent jurisdiction.
(6) In connection with any such claim or dispute, the heir, or in case of minority his guardian,
according to Black law, if no executor has been appointed by a Master of the Supreme Court shall be
regarded as the executor in the estate as if he had been duly appointed as such according to the law
governing the appointment of executors.
(7) Letters of administration from the Master of the Supreme Court shall not be necessary in, nor
shall the Master or any executor appointed by the Master have any powers in connection with, the
administration and distribution of - (a) . . . (b) any portion of the estate of a deceased Black which
falls under subsection (1) or (2).
(8) A Master of the Supreme Court may revoke letters of administration issued by him in respect of
any Black estate.
(9) Whenever a Black has died leaving a valid will which disposes of any portion of his estate, Black
law and custom shall not apply to the administration or distribution of so much of his estate as does
not fall under subsection (1) or (2) and such administration and distribution shall in all respects be in
accordance with the Administration of Estates Act, 1913 (Act No 24 of 1913).
(10) The Governor-General may make regulations not inconsistent with this Act - (a) prescribing the
manner in which the estates of deceased Blacks shall be administered and distributed; (b) defining
the rights of widows or surviving partners in regard to the use and occupation of the quitrent land of
deceased Blacks; (c) dealing with the disherison of Blacks; (d) . . . (e) prescribing tables of succession
in regard to Blacks; and (f) generally for the better carrying out of the provisions of this section.
(11) Any Black estate which has, prior to the commencement of this Act, been reported to a Master
of the Supreme Court shall be administered as if this Act had not been passed, and the provisions of
this Act shall apply in respect of every Black estate which has not been so reported.
[36.] For purposes of this discussion, it is necessary to draw attention to regulations 2, 3 and 4 only.
Regulation 2 provides as follows:
2. If a Black dies leaving no valid will, so much of his property, including immovable property, as does
not fall within the purview of subsection (1) or subsection (2) of section 23 of the Act shall be
distributed in the manner following: (a) . . . (b) If the deceased was at the time of his death the
holder of a letter of exemption issued under the provisions of section 31 of the Act, exempting him
from the operation of the Code of Zulu Law, the property shall devolve as if he had been a European.
(c) If the deceased, at the time of his death was - (i) a partner in a marriage in community of
property or under antenuptual contract; or (ii) a widower, widow or divorcee, as the case may be, of
a marriage in community of property or under antenuptual contract and was not survived by a
partner to a customary union entered into subsequent to the dissolution of such marriage, the
property shall devolve as if the deceased had been a European. (d) When any deceased Black is
survived by any partner- (i) with whom he had contracted a marriage which, in terms of subsection
(6) of section 22 of the Act, had not produced the legal consequences of a marriage in community of
property; or (ii) with whom he had entered into a customary union; or (iii) who was at the time of his
death living with him as his putative spouse; or by any issue of himself and any such partner, and the
circumstances are such as in the opinion of the Minister to render the application of Black law and
custom to the devolution of the whole, or some part, of his property inequitable or inappropriate,
the Minister may direct that the said property or the said part thereof, as the case may be, shall
devolve as if the said Black and the said partner had been lawfully married out of community of
property, whether or not such was in fact the case, and as if the said Black had been a European. (e)
If the deceased does not fall into any of the classes described in paragraphs (b), (c) and (d), the
property shall be distributed according to Black law and custom.
[37.] In terms of regulation 3, a magistrate in whose jurisdiction the deceased resided may hold an
inquiry to determine the identity of the person or people entitled to succeed to the deceased's
property. For that purpose, the magistrate may summon anyone able to supply the information
necessary to make that decision.
[38.] Regulation 4 provides for the appointment of a representative of the estate who may be
required to provide security for the due and proper administration of the estate. Once appointed,
the representative has an obligation to render a' just, true and exact account of his administration of
the estate.'
[39.] The above provisions should be read with section 1(4)(b) of the Intestate Succession Act which
provides as follows: '''Intestate estate'' includes any part of an estate ... in respect of which section
23 of the Black Administration Act, 1927 (Act 38 of 1927), does not apply.'
The approach to customary law
[40.] The system that flows from the above legislative framework purports to give effect to
customary law. It is a parallel system, different in concept and in effect, to that which flows from the
Intestate Succession Act, which is designed to apply to all intestate estates other than those
governed by section 23 of the Act.
[41.] It is important to appreciate the distinction between the legal framework based on section 23
of the Act and the place occupied by customary law in our constitutional system. Quite clearly the
Constitution itself envisages a place for customary law in our legal system. Certain provisions of the
Constitution put it beyond doubt that our basic law specifically requires that customary law should
be accommodated, not merely tolerated, as part of South African law, provided the particular rules
or provisions are not in conflict with the Constitution. Sections 30 38 and 31 39 of the Constitution
entrench respect for cultural diversity. Further, section 39(2) specifically requires a court
interpreting customary law to promote the spirit, purport and objects of the Bill of Rights. In similar
vein, section 39(3) 40 states that the Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by customary law as long as they are consistent with the
Bill of Rights. Finally, section 211 protects those institutions that are unique to customary law. It
follows from this that customary law must be interpreted by the courts, as first and foremost
answering to the contents of the Constitution. It is protected by and subject to the Constitution in its
own right.
[42.] It is for this reason that an approach that condemns rules or provisions of customary law
merely on the basis that they are different to those of the common law or legislation, such as the
Intestate Succession Act, would be incorrect. At the level of constitutional validity, the question in
this case is not whether a rule or provision of customary law offers similar remedies to the Intestate
Succession Act. The issue is whether such rules or provisions are consistent with the Constitution.
[43.] This status of customary law has been acknowledged and endorsed by this Court. In Alexkor Ltd
and Another v Richtersveld Community and Others, the following was stated:
While in the past indigenous law was seen through the common law lens, it must now be seen as an
integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution.
Its validity must now be determined by reference not to common-law, but to the Constitution.
(Footnotes omitted.)
This approach avoids the mistakes which were committed in the past and which were partly the
result of the failure to interpret customary law in its own setting but rather attempting to see it
through the prism of the common law or other systems of law. 43 That approach also led in part to
the fossilisation and codification of customary law which in turn led to its marginalisation. This
consequently denied it of its opportunity to grow in its own right and to adapt itself to changing
circumstances. This no doubt contributed to a situation where, in the words of Mokgoro J,
'[c]ustomary law was lamentably marginalised and allowed to degenerate into a vitrified set of
norms alienated from its roots in the community'.
[44.] It should however not be inferred from the above that customary law can never change and
that it cannot be amended or adjusted by legislation. In the first place, customary law is subject to
the Constitution. Adjustments and development to bring its provisions in line with the Constitution
or to accord with the 'spirit, purport and objects of the Bill of Rights' are mandated. Secondly, the
legislative authority of the Republic vests in Parliament. Thirdly, the Constitution envisages a role for
national legislation in the operation, implementation and/or changes effected to customary law. 48
[45.] The positive aspects of customary law have long been neglected. The inherent flexibility of the
system is but one of its constructive facets. Customary law places much store in consensus-seeking
and naturally provides for family and clan meetings which offer excellent opportunities for the
prevention and resolution of disputes and disagreements. Nor are these aspects useful only in the
area of disputes. They provide a setting which contributes to the unity of family structures and the
fostering of co-operation, a sense of responsibility in and of belonging to its members, as well as the
nurturing of healthy communitarian traditions such as ubuntu. These valuable aspects of customary
law more than justify its protection by the Constitution.
[46.] It bears repeating, however, that as with all law, the constitutional validity of rules and
principles of customary law depend on their consistency with the Constitution and the Bill of Rights.
The constitutional rights implicated
[47.] In both written and oral submissions before the Court, it was argued that the impugned
provisions seriously violate various constitutional rights, primarily, rights to human dignity (section
10 of the Constitution), and to equality (section 9 of the Constitution), as well as the rights of
children (section 28 of the Constitution).
(1) Human dignity (section 10 of the Constitution)
[48.] Section 10 of the Constitution provides that '[e]veryone has inherent dignity and the right to
have their dignity respected and protected.' This Court has repeatedly emphasised the importance
of human dignity in our constitutional order. In S v Makwanyane 50 Chaskalson P stated that the
right to human dignity was, together with the right to life, the source of all other rights. Elsewhere,
Ackermann J stated that 'the constitutional protection of dignity requires us to acknowledge the
value and worth of allindividuals as members of our society.' As a value, Kriegler J referred to human
dignity as one of three 'conjoined, reciprocal and covalent values' which are foundational to this
country. In Dawood and Another v Minister of Home Affairs and Others, the Court asserted:
The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution
asserts dignity to contradict our past in which human dignity for black South Africans was routinely
and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the
intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and
interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all,
other rights. This Court has already acknowledged the importance of the constitutional value of
dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel,
inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is
of central significance in the limitations analysis. Section 10, however, makes it plain that dignity is
not only a value
(2) The right to equality and the prohibition of discrimination (section 9 of the Constitution)
[49.] The importance of the right to equality has frequently been emphasised in the judgments of
this Court. In Fraser v Children's Court, Pretoria North, and Others, Mahomed DP had the following
to say:
There can be no doubt that the guarantee of equality lies at the very heart of the Constitution. It
permeates and defines the very ethos upon which the Constitution is premised. In the very first
paragraph of the preamble it is declared that there is a '. . . need to create a new order . . . in which
there is equality between men and women and people of all races so that all citizens shall be able to
enjoy and exercise their fundamental rights and freedoms'. (Footnotes omitted.)
[50.] The centrality of equality is underscored by references to it in various provisions of the
Constitution and in many judgments of this Court. 56 Not only is the achievement of equality one of
the founding values of the Constitution, section 9 of the Constitution also guarantees the
achievement of substantive equality to ensure that the opportunity to enjoy the benefits of an
egalitarian and non-sexist society is available to all, including those who have been subjected to
unfair discrimination in the past. Thus section 9(3) of the Constitution prohibits unfair discrimination
by the state 'directly or indirectly against anyone' on grounds which include race, gender and sex.
[51.] Nor is the South African Constitution alone in the emphasis it places on the right to equality.
The right is cherished in the constitutions and the jurisprudence of many open and democratic
societies. A number of international instruments, to which South Africa is party, also underscore the
need to protect the rights of women, and to abolish all laws that discriminate against them 58 as
well as to eliminate any racial discrimination in our society.
(3) The rights of children
[52.] Section 28 of the Constitution provides specific protection for the rights of children. Our
constitutional obligations in relation to children are particularly important for we vest in our children
our hopes for a better life for all. The inclusion of this provision in the Constitution marks the
constitutional importance of protecting the rights of children, not only those rights expressly
conferred by section 28 but also all the other rights in the Constitution which, appropriately
construed, are also conferred upon children. Children, therefore, may not be subjected to unfair
discrimination in breach of section 9(3) just as adults may not be.
[53.] Two prohibited grounds of discrimination are relevant in this case. The first relates to sex,
something that I need not discuss further here, except to remark that the importance of protecting
children from discrimination on the grounds of sex is acknowledged in the African Charter on the
Rights of the Child.
[54.] The second relates to the prohibition of unfair discrimination on the ground of 'birth' in section
9(3). To the extent that one of the issues that arises in this case is the question of whether the
differential entitlements of children born within a marriage and those born extra-maritally
constitutes unfair discrimination, the meaning to be attributed to 'birth' in section 9(3) is important.
[55.] In interpreting both section 28 and the other rights in the Constitution, the provisions of
international law must be considered. 64 South Africa is a party to a number of international
multilateral agreements 65 designed to strengthen the protection of children. The Convention on
the Rights of the Child asserts that children, by reason of their 'physical and mental immaturity' need
'special safeguards and care'. Article 2 of the Convention requires signatories to ensure that the
rights set forth in the Convention shall be enjoyed regardless of 'race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property, isability, birth or other status.'
Article 24(1) of the International Covenant on Civil and Political Rights (1966), also provides expressly
that:
Every child shall have, without any discrimination as to race, colour, sex, language, religion, national
or social origin, property or birth, the right to such measures of protection as are required by his
status as a minor, on the part of his family, society and the state.
Similarly, article 3 of the African Charter on the Rights and Welfare of the Child provides that
children are entitled to enjoy the rights and freedoms recognised and guaranteed in the Charter
'irrespective of the child's or his or her parents' or legal guardians' race, ethnic group, colour, sex, . . .
birth or other status.'
[56.] The European Court on Human Rights has held that treating extramarital children differently to
those born within a marriage constitutes a suspect ground of differentiation in terms of article 14 of
the Charter. The United States Supreme Court, too, has held that discriminating on the grounds of
'illegitimacy' is 'illogical and unjust'.
[57.] Historically in South Africa, children whose parents were not married at the time they were
conceived or born were discriminated against in a range of ways. This was particularly true of
children whose family lives were governed by common law. Much of the stigma that attached to
extra-marital children was social and religious in origin, rather than legal, but that stigma was deeply
harmful. The legal consequences of extra-marital birth at common law flowed from the Dutch
principle that 'een wijf maakt geen bastaard', the implications of which were that the extra-marital
child was not recognised as having any legal relationship with his or her father, but only with his or
her mother. The child therefore took the mother's name, inherited only from his or her mother, and
the father of the child had no parental obligations or rights vis-à-vis the child. The law and social
practice concerning extra-marital children without doubt conferred a stigma upon them which was
harmful and degrading.
[58.] It is important, however, in assessing the discrimination and stigma attached to extra-marital
birth to distinguish between common law and customary law. As Jones records:
The African means of dealing with extramarital birth is essentially accommodative in intent and
character; it is oriented towards social inclusivity. The mechanism of maternal-filiation provides an
extramarital child with a father, with a male ritual and social sponsor, with a place in a conjugal unit,
and it manufactures for the child a full lineal identity. Very importantly, these attributes are socially
visible - they counter what would otherwise be clearly evident deficits in an extramarital child's
social make-up - and are preserved and upheld by way of taboo against reference to the child's real
paternity or social position. As far as is possible within the bounds of cultural reason, the effect of
the African system is therefore to ensure that an extramarital child's position is not compromised by
the circumstances of his or her birth.
Nevertheless, extra-marital sons had reduced rights of inheritance under customary law, as they
would only inherit in the absence of any other male descendants. Contemporary research suggests
too that there is social stigma attached to extra-marital children, though the stigma probably varies
depending on the circumstances and community concerned. 73
[59.] The prohibition of unfair discrimination on the ground of birth in section 9(3) of our
Constitution should be interpreted to include a prohibition of differentiating between children on
the basis of whether a child's biological parents were married either at the time the child was
conceived or when the child was born. As I have outlined, extra-marital children did, and still do,
suffer from social stigma and impairment of dignity. The prohibition of unfair discrimination in our
Constitution is aimed at removing such patterns of stigma from our society. Thus, when section 9(3)
prohibits unfair discrimination on the ground of 'birth', it should be interpreted to include a
prohibition of differentiation between children on the grounds of whether the children's parents
were married at the time of conception or birth. Where differentiation is made on such grounds, it
will be assumed to be unfair unless it is established that it is not.
Does section 23 violate the rights contended for?
[60.] In argument, section 23 was correctly described as a racist provision which is fundamentally
incompatible with the Constitution. It was submitted that the section is inconsistent with sections 9
and 10 of the Constitution because of its blatant discrimination on grounds of race, colour and
ethnic origin and its harmful effects on the dignity of persons affected by it. This Court has often
expressed its abhorrence of discriminatory legislation and practices which were a feature of our
hurtful and racist past and which are fundamentally inconsistent with the constitutional guarantee
of equality.
[61.] Section 23 cannot escape the context in which it was conceived. It is part of an Act which was
specifically crafted to fit in with notions of separation and exclusion of Africans from the people of
'European' descent. The Act was part of a comprehensive exclusionary system of administration
imposed on Africans, ostensibly to avoid exposing them to a result which, 'to the Native mind',
would be 'both startling and unjust'. 74 What the Act in fact achieved was to become a cornerstone
of racial oppression, division and conflict in South Africa, the legacy of which will still take years to
completely eradicate. Proponents of the policy of apartheid were able, with comparative ease, to
build on the provisions of the Act and to perfect a system of racial division and oppression that
caused untold suffering to millions of South Africans. Some parts of the Act have now been repealed
and modified; most of section 23 however remains and still serves to haunt many of those Africans
subject to the parallel regime of intestate succession which it creates.
[62.] The Act has earned deserved criticism which must be seen in the light of the origins of its
provisions. The remarks of McLoughlin, made in two of his judgments when he was President of the
Native Appeal Court, are instructive in this regard. In Ruth Matsheng v Nicholas Dhlamini and John
Mhaushan, he stated:
The attitude of the legislature towards natives and Native Law in the Transvaal is clearly shown by
the survey of the history of legislation on the subject since the early Republican days. The natives
were placed in a category separate from the Europeans and they were permitted no equality either
in the system of law applied to them nor in regard to the courts to which they were accorded access
in civil matters. . . . It is the Shepstonian conception of legal segregation successfully adopted in
Natal and imported into the Transvaal on annexation in 1877.
and later in the same judgment, he remarked as follows:
The subjection by native law of women to tutelage and the denial of locus standi in judicio unaided is
neither 'inconsistent with the general principles of civilisation recognised in the civil world' nor is the
custom one which occasions evident injustice or which is 'in conflict with the accepted principles of
natural justice', for the common law in this country still maintains a similar disability in respect of
women married in community of property. Other civilised nations extend the rule much further.
Later still, in Dukuza Kaula v John Mtimkulu and Madhlala Mtimkulu, writing on the subject of the
exemption of Africans from the operation of 'Native law', he stated:
The policy of legal segregation dates back to the beginning of the legal history of Natal. To meet the
case of Natives 'not so ignorant or so unfitted by habit or otherwise as to render them incapable of
exercising and understanding the ordinary duties of civilised life' provision was made to exempt such
persons from the operation of Native law - or as stated in the statute 'taken out of the operation of
Native Law,' - Natal law 28 of 1865.'
Quite clearly the Act developed from these notions of separation and inequality between Europeans
and Africans, and its provisions have not moved much from the 'Shepstonian conception of legal
segregation'.
[63.] In DVB Behuising, 80 Madala J referred to the Act as a' piece of obnoxious legislation not
befitting a democratic society based on human dignity, equality and freedom'. 81 In the same case,
Ngcobo J described the Act as 'an egregious apartheid law which anachronistically has survived our
transition to a non-racial democracy' 82 and referred to proclamations made under it as part of a
'demeaning and racist' system. 83 Ngcobo J went on to comment:
The Native Administration Act 38 of 1927 appointed the Governor-General (later referred to as the
State President) as 'supreme chief' of all Africans. It gave him power to govern Africans by
proclamation. The powers given to him were virtually absolute. He could order the removal of an
entire African community from one place to another. The Native Administration Act became the
most powerful tool in the implementation of forced removals of Africans from the so-called 'white
areas' into the areas reserved for them. These removals resulted in untold suffering. This
geographical plan of segregation was described as forming part of a' colossal social experiment and a
long term policy'. (Footnotes omitted.)
[64.] More recently, in Moseneke, Sachs J, writing for a unanimous Court, expressed himself as
follows:
It is painful that the Act still survives at all. The concepts on which it was based, the memories it
evokes, the language it continues to employ and the division it still enforces are antithetical to the
society envisaged by the Constitution. It is an affront to all of us that people are still treated as
'blacks' rather than as ordinary persons seeking to wind up a deceased estate, and it is in conflict
with the establishment of a non-racial society where rights and duties are no longer determined by
origin or skin colour.
[65.] Sachs J went on to discuss section 23(7) of the Act and regulation 3(1) of the regulations. He
noted that the Minister and the Master suggested that the administration of deceased estates by
magistrates was often convenient and inexpensive, and responded by commenting that even if there
are practical advantages for people in the system, the fact remains that it is rooted in racial
discrimination. He held that, given our history of racial discrimination, the indignity occasioned by
treating people differently as 'blacks' is not rendered fair by the factors identified by the Minister
and the Master. He concluded that no society based on equality, freedom and dignity would tolerate
differential treatment based on skin colour, particularly where the legislative provisions in question
formed part of a broader package of racially discriminatory legislation that systematically
disadvantaged Africans. Any convenience the provisions might achieve could be accomplished
equally as well by a non-discriminatory provision.
[66.] In the Bhe and Shibi cases, the constitutional attack was directed at particular provisions of
subsection (10) of section 23 and the regulations. It is quite clear though that the subsections which
constitute section 23, read with the regulations, together constitute a scheme of intestate
succession. The subsections are interlinked and, in my view, they all stand or fall together. They
provide a scheme whereby the legal system that governs intestate succession is determined simply
by reference to skin colour. The choice of law is thus based on racial grounds without more. In so
doing, section 23 and its regulations impose a system on all Africans irrespective of their
circumstances and inclinations. What it says to Africans is that if they wish to extricate themselves
from the regime it creates, they must make a will. Only those with sufficient resources, knowledge,
education or opportunity to make an informed choice will be able to benefit from that provision.
Moreover, the section provides that some categories of property are incapable of being devised by
will but must devolve according to the principles of 'Black law and custom'.
[67.] The racist provenance of the provision is illustrated in the reference in the regulations to the
distinction drawn between estates that must devolve in terms of 'Black law and custom' and those
that devolve as though the deceased 'had been a European'. 88 The purported exemption of certain
Africans - who qualify - from the operation of 'Black law and custom' to the status of a 'European' is
not only demeaning, it is overtly racist. This provision is to be found in the regulations, not in the
statute itself. It nevertheless provides a contextual indicator of the purpose and intent of the overall
scheme contemplated by section 23 and the regulations.
[68.] I conclude, then, that construed in the light of its history and context, section 23 of the Act and
its regulations are manifestly discriminatory and in breach of section 9(3) of our Constitution. The
discrimination they perpetuate touches a raw nerve in most South Africans. It is a relic of our racist
and painful past. This Court has, on a number of occasions, expressed the need to purge the statute
book of such harmful and hurtful provisions. The only question that remains to be considered is
whether the discrimination occasioned by section 23 and its regulations is capable of justification in
terms of section 36 of our Constitution.
Justification inquiry
[69.] Section 36 of the Constitution requires that a provision that limits rights should be a law of
general application and that the limitation should be reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom.
[70.] As was said in S v Manamela and Another (Director-General of Justice Intervening):
[T]he Court must engage in a balancing exercise and arrive at a global judgment on
proportionality . . . . As a general rule, the more serious the impact of the measure on the right, the
more persuasive or compelling the justification must be. Ultimately, the question is one of degree to
be assessed in the concrete legislative and social setting of the measure, paying due regard to the
means which are realistically available in our country at this stage, but without losing sight of the
ultimate values to be protected.
[71.] The rights violated are important rights, particularly in the South African context. The rights to
equality and dignity are of the most valuable of rights in any open and democratic state. They
assume special importance in South Africa because of our past history of inequality and hurtful
discrimination on grounds that include race and gender.
[72.] It could be argued that despite its racist and sexist nature, section 23 gives recognition to
customary law and acknowledges the pluralist nature of our society. This is however not its
dominant purpose or effect. Section 23 was enacted as part of a racist programme intent on
entrenching division and subordination. Its effect has been to ossify customary law. In the light of its
destructive purpose and effect, it could not be justified in any open and democratic society.
[73.] It is clear from what is stated above that the serious violation by the provisions of section 23 of
the rights to equality and human dignity cannot be justified in our new constitutional order. In terms
of section 172(1)(a) of the Constitution, 92 section 23 must accordingly be struck down.
[74.] The effect of the invalidation of section 23 is that the rules of customary law governing
succession are applicable. The applicants in both the Bhe and Shibi cases, however, launched an
attack on the customary law rule of primogeniture. It is to that attack that I now turn.
The customary law of succession
[75.] It is important to examine the context in which the rules of customary law, particularly in
relation to succession, operated and the kind of society served by them. The rules did not operate in
isolation. They were part of a system which fitted in with the community's way of life. The system
had its own safeguards to ensure fairness in the context of entitlements, duties and responsibilities.
It was designed to preserve the cohesion and stability of the extended family unit and ultimately the
entire community. This served various purposes, not least of which was the maintenance of
discipline within the clan or extended family. Everyone, man, woman and child had a role and each
role, directly or indirectly, was designed to contribute to the communal good and welfare.
[76.] The heir did not merely succeed to the assets of the deceased; succession was not primarily
concerned with the distribution of the estate of the deceased, but with the preservation and
perpetuation of the family unit. Property was collectively owned and the family head, who was the
nominal owner of the property, administered it for the benefit of the family unit as a whole. The heir
stepped into the shoes of the family head and acquired all the rights and became subject to all the
obligations of the family head. The members of the family under the guardianship of the deceased
fell under the guardianship of his heir. The latter, in turn, acquired the duty to maintain and support
all the members of the family who were assured of his protection and enjoyed the benefit of the
heir's maintenance and support. He inherited the property of the deceased only in the sense that he
assumed control and administration of the property subject to his rights and obligations as head of
the family unit. The rules of the customary law of succession were consequently mainly concerned
with succession to the position and status of the deceased family head rather than the distribution
of his personal assets.
[77.] Central to the customary law of succession is the rule of primogeniture, the main features of
which are well established. The general rule is that only a male who is related to the deceased
qualifies as intestate heir. Women do not participate in the intestate succession of deceased estates.
In a monogamous family, the eldest son of the family head is his heir. If the deceased is not survived
by any male descendants, his father succeeds him. If his father also does not survive him, an heir is
sought among the father's male descendants related to him through the male line.
[78.] The exclusion of women from heirship and consequently from being able to inherit property
was in keeping with a system dominated by a deeply embedded patriarchy which reserved for
women a position of subservience and subordination and in which they were regarded as perpetual
minors under the tutelage of the fathers, husbands, or the head of the extended family.
The position of the extra-marital child
[79.] Extra-marital children are not entitled to succeed to their father's estate in customary law. 96
They however qualify for succession in their mother's family, but subject to the principle of
primogeniture. The eldest male extramarital child qualifies for succession only after all male intramarital children and other close male members of the family.
The effect of changing circumstances
[80.] The setting has however changed. Modern urban communities and families are structured and
organised differently and no longer purely along traditional lines. The customary law rules of
succession simply determine succession to the deceased's estate without the accompanying social
implications which they traditionally had. Nuclear families have largely replaced traditional extended
families. The heir does not necessarily live together with the whole extended family which would
include the spouse of the deceased as well as other dependants and descendants. He often simply
acquires the estate without assuming, or even being in a position to assume, any of the deceased's
responsibilities. In the changed circumstances, therefore, the succession of the heir to the assets of
the deceased does not necessarily correspond in practice with an enforceable responsibility to
provide support and maintenance to the family and dependants of the deceased.
Customary law has not kept pace
[81.] In Richtersveld, this Court noted that 'indigenous law is not a fixed body of formally classified
and easily ascertainable rules. By its very nature it evolves as the people who live by its norms
change their patterns of life.' It has throughout history 'evolved and developed to meet the changing
needs of the community.'
[82.] The rules of succession in customary law have not been given the space to adapt and to keep
pace with changing social conditions and values. One reason for this is the fact that they were
captured in legislation, in text books, in the writings of experts and in court decisions without
allowing for the dynamism of customary law in the face of changing circumstances. Instead, they
have over time become increasingly out of step with the real values and circumstances of the
societies they are meant to serve and particularly the people who live in urban areas.
[83.] It is clear that the application of the customary law rules of succession in circumstances vastly
different from their traditional setting causes much hardship. This is described in the report of the
South African Law Reform Commission (the Law Reform Commission) which cites three reasons for
the plight in which African widows find themselves in the changed circumstances: (a) the fact that
social conditions frequently do not make 'living with the heir' a realistic or even a tolerable
proposition; (b) the fact, frequently pointed out by the courts, that the African woman 'does not
have a right of ownership'; and (c) the prerequisite of a 'good working relationship with the heir' for
the effectiveness of 'the widow's right to maintenance'. In this regard, the report concludes that:
Unfortunately, circumstances do not favour this relationship. Widows are all too often kept on at the
deceased's homestead on sufferance or they are simply evicted. They then face the prospect of
having to rear their children with no support from the deceased's family.
[84.] Because of this, the official rules of customary law of succession are no longer universally
observed. In her affidavit, Likhapha Mbatha, a researcher at the Gender Research Project at the
Centre for Applied Legal Studies, observes that the formal rules of customary law have failed to keep
pace with changing social conditions as a result of which they are no longer universally observed.
These changes have required of customary rules that they adapt, and therefore change. Bennett also
refers to trends that reflect a basic social need to sustain the surviving family unit rather than a
general adherence to male primogeniture.
[85.] The report of the Law Reform Commission makes the point that the rule of primogeniture is
evolving to meet the needs of changing social patterns. It states that the order of succession is the
theory and that in reality different rules may well be developing, such as the replacement of the
eldest son with the youngest for purposes of inheritance, and the fact that widows often take over
their husbands' lands and other assets, especially when they have young children to raise.
[86.] What needs to be emphasised is that, because of the dynamic nature of society, official
customary law as it exists in the text books and in the Act is generally a poor reflection, if not a
distortion of the true customary law. True customary law will be that which recognises and
acknowledges the changes which continually take place. In this respect, I agree with Bennett's
observation that:
[A] critical issue in any constitutional litigation about customary law will therefore be the question
whether a particular rule is a mythical stereotype, which has become ossified in the official code, or
whether it continues to enjoy social currency.
[87.] The official rules of customary law are sometimes contrasted with what is referred to as 'living
customary law', which is an acknowledgement of the rules that are adapted to fit in with changed
circumstances. The problem with the adaptations is that they are ad hoc and not uniform. However,
magistrates and the courts responsible for the administration of intestate estates continue to adhere
to the rules of official customary law, with the consequent anomalies and hardships as a result of
changes which have occurred in society. Examples of this are the manner in which the Bhe and Shibi
cases were dealt with by the respective Magistrates.
The problem with primogeniture
[88.] The basis of the constitutional challenge to the official customary law of succession is that the
rule of primogeniture precludes (a) widows from inheriting as the intestate heirs of their late
husbands; 107 (b) daughters from inheriting from their parents; 108 (c) younger sons from inheriting
from their parents, and (d) extra-marital children from inheriting from their fathers. It was
contended that these exclusions constitute unfair discrimination on the basis of gender and birth
and are part of a scheme underpinned by male domination.
[89.] Customary law has, in my view, been distorted in a manner that emphasises its patriarchal
features and minimises its communitarian ones. As Nhlapo indicates:
Although African law and custom has always had [a] patriarchal bias, the colonial period saw it
exaggerated and entrenched through a distortion of custom and practice which, in many cases, had
been either relatively egalitarian or mitigated by checks and balances in favour of women and the
young. ... Enthroning the male head of the household as the only true person in law, sole holder of
family property and civic status, rendered wives, children and unmarried sons and daughters
invisible in a social and legal sense. ... The identification of the male head of the household as the
only person with property-holding capacity, without acknowledging the strong rights of wives to
security of tenure and use of land, for example, was a major distortion. Similarly, enacting the socalled perpetual minority of women as positive law when, in the pre-colonial context, everybody
under the household head was a minor (including unmarried sons and even married sons who had
not yet established a separate residence), had a profound and deleterious effect on the lives of
African women. They were deprived of the opportunity to manipulate the rules to their advantage
through the subtle interplay of social norms, and, at the same time, denied the protections of the
formal legal order. Women became 'outlaws'. 111
Nhlapo concludes that protecting people from distortions masquerading as custom is imperative,
especially for those they disadvantage so gravely, namely, women and children.
[90.] At a time when the patriarchal features of Roman-Dutch law were progressively being removed
by legislation, customary law was robbed of its inherent capacity to evolve in keeping with the
changing life of the people it served, particularly of women. Thus customary law as administered
failed to respond creatively to new kinds of economic activity by women, different forms of property
and household arrangements for women and men, and changing values concerning gender roles in
society. The outcome has been formalisation and fossilisation of a system which by its nature should
function in an active and dynamic manner.
[91.] The exclusion of women from inheritance on the grounds of gender is a clear violation of
section 9(3) of the Constitution. It is a form of discrimination that entrenches past patterns of
disadvantage among a vulnerable group, exacerbated by old notions of patriarchy and male
domination incompatible with the guarantee of equality under this constitutional order.
[92.] The principle of primogeniture also violates the right of women to human dignity as guaranteed
in section 10 of the Constitution as, in one sense, it implies that women are not fit or competent to
own and administer property. Its effect is also to subject these women to a status of perpetual
minority, placing them automatically under the control of male heirs, simply by virtue of their sex
and gender. Their dignity is further affronted by the fact that as women, they are also excluded from
intestate succession and denied the right, which other members of the population have, to be
holders of, and to control property.
[93.] To the extent that the primogeniture rule prevents all female children and significantly curtails
the rights of male extra-marital children from inheriting, it discriminates against them too. These are
particularly vulnerable groups in our society which correctly places much store in the well-being and
protection of children who are ordinarily not in a position to rotect themselves. In denying female
and extra-marital children the ability and the opportunity to inherit from their deceased fathers, the
application of the principle of primogeniture is also in violation of section 9(3) of the Constitution.
[94.] In view of the conclusion reached later in this judgment, that it is not possible to develop the
rule of primogeniture as it applies within the customary law rules governing the inheritance of
property, it is not necessary or desirable in this case for me to determine whether the discrimination
against children, who happen not to be the eldest, necessarily constitutes unfair discrimination. I
express no view on that question. Nor, I emphasise again, does this judgment consider at all the
constitutionality of the rule of male primogeniture in other contexts within customary law, such as
the rules which govern status and traditional leaders.
Justification inquiry: primogeniture
[95.] The primogeniture rule as applied to the customary law of succession cannot be reconciled
with the current notions of equality and human dignity as contained in the Bill of Rights. As the
centrepiece of the customary law system of succession, the rule violates the equality rights of
women and is an affront to their dignity. In denying extra-marital children the right to inherit from
their deceased fathers, it also unfairly discriminates against them and infringes their right to dignity
as well. The result is that the limitation it imposes on the rights of those subject to it is not
reasonable and justifiable in an open and democratic society founded on the values of equality,
human dignity and freedom.
[96.] I have already observed that with the changing circumstances, the connection between the
rules of succession in customary law and the heir's duty to support the dependants of the deceased
is, at best, less than satisfactory. Compliance with the duty to support is frequently more apparent
than real. There may well be dependants of the deceased who would lay claim to the heir's duty to
support them; they would however be people who, in the vast majority, are so poor that they are
not in a position to ensure that their rights are protected and enforced. The heir's duty to support
cannot, in the circumstances, constitute justification for the serious violation of rights.
[97.] In conclusion, the official system of customary law of succession is incompatible with the Bill of
Rights. It cannot, in its present form, survive constitutional scrutiny.
The decisions in Mthembu v Letsela
[98.] The relationship between customary law and the Constitution was considered in the two
Mthembu decisions, firstly in the Pretoria High Court and lastly in the appeal heard by the Supreme
Court of Appeal. The appellants brought an application in the High Court for an order, declaring the
customary law rule of primogeniture and regulation 2(e) to be invalid on the grounds that they
gratuitously discriminate against women, children who are not the eldest and extra-marital children
in a manner that offends the equality guarantee under section 8 of the interim Constitution. The
High Court dismissed the application, holding that neither the rule nor the regulation was
inconsistent with the equality protection under the interim Constitution. On appeal, the Supreme
Court of Appeal was invited to set aside the order of the High Court and to develop, as required by
section 35(3) of the interim Constitution, the rule of primogeniture in order to allow all descendants
to participate in intestacy. The Supreme Court of Appeal declined to decide the constitutional
challenge or to develop the rule on the ground that the interim Constitution does not operate
retroactively. It reasoned that the rights of the heir in the estate had vested on the death of the
deceased, which was on 13 August 1993 and before the interim Constitution took effect.
[99.] In an alternative argument, the Supreme Court of Appeal was urged to conclude that the rule
of primogeniture and regulation 2(e) are bad under the common law because they are offensive to
public policy or natural justice which are premised on the fundamental value of equality. The Court
rejected this contention and dismissed the appeal. It held that neither the rule nor the regulation
offended the common law. The regulation, it held, is neither unreasonable nor 'ultra vires at
common law'. It merely gives legislative recognition to a well established principle of male
primogeniture according to which 'many blacks, even to this day, would wish their estates to
devolve'.
[100.] I have held that section 23 is inconsistent with the Constitution and invalid. As a result,
regulation 2(e) falls away. I have also found that the customary law rule of primogeniture, in its
application to intestate succession, is not consistent with the equality protection under the
Constitution. It follows therefore that any finding in Mthembu which is at odds with this judgment
cannot stand.
Remedy
[101.] Perhaps the most difficult aspect of this composite case is the issue of remedy. It will be as
well, though to keep a few salutary principles in mind. In S v Bhulwana; S v Gwadiso, the Court
expressed two important principles, namely that:
Central to a consideration of the interests of justice in a particular case is that successful litigants
should obtain the relief they seek. . . . In principle, too, the litigants before the Court should not be
singled out for the grant of relief, but relief should be afforded to all people who are in the same
situation as the litigants.
[102.] Factors relevant to any order made by this Court include speed, practicality, clarity and the
mitigation of any potential damage resulting from the relief of a temporary nature which this Court
may give. Further, as was suggested in the second National Coalition case, the Court should not shy
away from forging innovative remedies should this be required by the circumstances of the case.
[103.] In the Bhe case before the Cape High Court, paragraphs 1 and 2 of the order given declared
section 23(10)(a), (c) and (e) of the Act as unconstitutional and invalid, with the consequence that
regulation 2(e) fell away. Section 1(4)(b) of the Intestate Succession Act was also found to be
unconstitutional and invalid in so far as it excludes from the application of section 1, any estate or
part of any estate in respect of which section 23 of the Act applies. The order goes on to declare that
'until the aforegoing defects are corrected by competent legislature, the distribution of intestate
Black estates is governed by [section] 1 of the Intestate Succession Act'. The corresponding part of
the order in the Shibi application is to similar effect. As pointed out earlier, the application by the
South African Human Rights Commission and the Women's Legal Centre Trust has broadened the
ambit of the inquiry considerably.
[104.] What needs to be determined is the nature and form of the wider relief that should be
granted pursuant to the finding that section 23 of the Act is unconstitutional and invalid in its
entirety. In terms of section 172(1)(a) 127 of the Constitution, such a finding by the Court must be
followed by a declaration of invalidity, to the extent of the inconsistency. Thereafter, the Court 'may
make any order that is just and equitable.'
[105.] In considering an appropriate remedy in this case, various courses present themselves. They
are: (a) whether the Court should simply strike the impugned provisions down and leave it to the
legislature to deal with the gap that would result as it sees fit; (b) whether to suspend the
declaration of invalidity of the impugned provisions for a specified period; (c) whether the
customary law rules of succession should be developed in accordance with the 'spirit, purport and
objects of the Bill of Rights', or (d) whether to replace the impugned provisions with a modified
section 1 of the Intestate Succession Act or with some other order.
[106.] The question of polygynous marriages and whether or not the order by this Court should
accommodate them must also be considered. These are complex issues and that is why it is
regrettable that the opportunity given to the Chairperson of the House of Traditional Leaders by the
Chief Justice to provide their view did not receive a positive response.
Declaration of constitutional invalidity and suspension
[107.] In the circumstances of this case it will not suffice for the Court to simply strike down the
impugned provisions. There is a substantial number of people whose lives are governed by
customary law and their affairs will need to be regulated in terms of an appropriate norm. It will
therefore be necessary to formulate an order that incorporates appropriate measures to replace the
impugned framework in order to avoid an unacceptable lacuna which would be to the disadvantage
of those subject to customary law.
[108.] Nor can this Court afford to suspend the declaration of invalidity to a future date and leave
the current legal regime in place pending rectification by the legislature. The rights implicated are
important; those subject to the impugned provisions should not be made to wait much longer to be
relieved of the burden of inequality and unfair discrimination that flows from section 23 and its
related provisions. That would mean that the benefits of the Constitution would continue to be
withheld from those who have been deprived of them for so long.
Development of the customary law and the notion of the 'living' customary law
[109.] I have found that the primogeniture rule as applied to inheritance in customary law is
inconsistent with the constitutional guarantee of equality. The question whether the Court was in a
position to develop that rule in a manner which would 'promote the spirit, purport and objects of
the Bill of Rights' evoked considerable discussion during argument. In order to do so, the Court
would first have to determine the true content of customary law as it is today and to give effect to it
in its order. There is however insufficient evidence and material to enable the Court to do this. The
difficulty lies not so much in the acceptance of the notion of 'living' customary law, as distinct from
official customary law, but in determining its content and testing it, as the Court should, against the
provisions of the Bill of Rights.
[110.] It was suggested in argument that if the Court is not in a position to develop the rules of
customary law in this case, it should allow for flexibility in order to facilitate the development of the
law. The import of this was that since customary law is inherently flexible with the ability to permit
compromise settlements, 132 courts should introduce into the system those constitutional
principles that the official system of succession violates. It was suggested that this could be done by
using the exceptions in the implementation of the primogeniture rule which do occur in the actual
administration of intestate succession as the applicable rule for customary law succession in order to
avoid unfair discrimination and the violation of the dignity of the individuals affected by it. Those
exceptions would, according to this view, constitute the 'living' customary law which should be
implemented instead of official customary law.
[111.] There is much to be said for the above approach. I consider, however, that it would be
inappropriate to adopt it as the remedy in this case. What it amounts to is advocacy for a case by
case development as the best option. It is true that there have been signs of evolution in court
decisions in recent times, where some courts have shown a willingness to recognise changes in
customary law. In Mabena v Letsoalo, for instance, it was accepted that a principle of living, actually
observed law had to be recognised by the court as it would constitute a development in accordance
with the 'spirit, purport and objects' of the Bill of Rights contained in the interim Constitution.
[112.] The problem with development by the courts on a case by case basis is that changes will be
very slow; uncertainties regarding the real rules of customary law will be prolonged and there may
well be different solutions to similar problems. The lack of uniformity and the uncertainties it causes
is obvious if one has regard to the fact that in some cases, courts have applied the common law
system of devolution of intestate estates. 136 Magistrates and courts responsible for the
administration of intestate states would also tend to adhere to formal rules of customary law as laid
down in decisions such as Mthembu 137 and its predecessors.
[113.] I accordingly have serious doubts that leaving the vexed position of customary law of
succession to the courts to develop piecemeal would be sufficient to guarantee the constitutional
protection of the rights of women and children in the devolution of intestate estates. What is
required, in my view, is more direct action to safeguard the important rights that have been
identified.
[114.] The Court was urged not to defer to the legislature to make the necessary reforms because of
the delays experienced so far in producing appropriate legislation. This was an invitation to the
Court to make a definitive order that would solve the problem once and for all. That there have been
delays is true and that is a concern this Court cannot ignore. The first proposal by the Law Reform
Commission for legislation in this field was made more than six years ago. According to the Minister,
the need for broad consultation before any Bill was finalised has been the cause of the delays.
Moreover, he was unable to give any guarantee as to when the Bill would become law.
[115.] I consider, nevertheless, that the legislature is in the best position to deal with the situation
and to safeguard the rights that have been violated by the impugned provisions. It is the appropriate
forum to make the adjustments needed to rectify the defects identified in the customary law of
succession. What should however be borne in mind is that the task of preventing ongoing violations
of human rights is urgent. The rights involved are very important, implicating the foundational values
of our Constitution. The victims of the delays in rectifying the defects in the legal system are those
who are among the most vulnerable of our society.
[116.] The Court's task is to facilitate the cleansing of the statute book of legislation so deeply rooted
in our unjust past, while preventing undue hardship and dislocation. The Court must accordingly
fashion an effective and comprehensive order that will be operative until appropriate legislation is
put in place. Any order by this Court should be regarded by the legislature as an interim measure. It
would be undesirable if the order were to be regarded as a permanent fixture of the customary law
of succession.
The appropriateness of substituting the Intestate Succession Act
[117.] The effect of the High Court orders, in both the Bhe and Shibi cases is that a modified form of
section 1 of the Intestate Succession Act hould be put in place as a substitute for the impugned
legislative framework pending appropriate legislation by Parliament. Reservations were however
expressed in this Court about whether the Intestate Succession Act was the correct mechanism for
this purpose. It will be useful at this stage to give a broad indication of the effect of the detailed
provisions of section 1 of the Intestate Succession Act. The section provides for the surviving spouse
to inherit in the absence of descendants, for descendants to inherit in the absence of a surviving
spouse and for the surviving spouse to inherit the share of a single child (subject to a minimum if
there is too little in the estate) if the deceased is survived by both the surviving spouse and
descendants. Where the deceased is survived neither by descendants nor by a surviving spouse, the
parents of the deceased and, in some circumstances, the parents' descendants and blood relations
will benefit. It must be noted that the Intestate Succession Act makes provision for a single surviving
spouse only and that extra-marital children are included under the term 'descendants'.
[118.] The objection against resorting to the Intestate Succession Act was that its provisions would
be inadequate to cater for the various factual situations that arise in customary law succession as
the Intestate Succession Act was premised on the nuclear family model. The suggestion was that it
would, for instance, not naturally accommodate extended families which are a feature of the
customary environment, nor would it have regard to polygynous unions. It was contended that the
provisions of the Intestate Succession Act would also have a negative impact upon vulnerable groups
such as poor rural women.
[119.] A further concern was the fear that the utilisation of the Intestate Succession Act would
amount to an obliteration of the customary law of succession, a development that would be
undesirable, having regard to the status customary law enjoys under the Constitution. In considering
the views above, I must also have regard to the proposals contained in the report of the Law Reform
Commission which are set out below.
The proposals of the South African Law Reform Commission
[120.] The Law Reform Commission's proposals in this regard are based on the assumption that the
Intestate Succession Act, suitably adjusted, is capable of accommodating much of the customary law
of succession. In addition, the proposals suggest changes to other statutes, apart from the Act and
the Intestate Succession Act, that have an impact on succession as a whole. What the proposals
amount to is that provisions of other legislation should be taken into account, together with the
Intestate Succession Act, in fashioning appropriate legislation to replace the current legislative
framework. The report recommends that the provisions should ensure that spouses and children
should enjoy preference over other dependants of the deceased. It further recommends the
extension of the application of the Intestate Succession Act to enable it to accommodate categories
of Africans who are presently subject to the customary law of succession. This however does not
extend to persons who are not subject to customary law, namely: (a) parties who entered into a civil
marriage; (b) those persons who entered into a customary union after the coming into operation of
the Recognition of Customary Marriages Act 120 of 1998 (the Recognition Act); and (c) those who
have changed their matrimonial property regime in terms of section 7(4) of the Recognition Act, and
(d) persons who made a will.
[121.] It should be noted that the recommendations of the Law Reform Commission are meant for
the consideration of the legislature. However, in fashioning an appropriate order for this case, I have
had due regard to the objections against the replacement of the impugned provisions with the
Intestate Succession Act as well as to the Law Reform Commission's proposals.
Polygynous unions
[122.] In light of the wider relief requested by the South African Human Rights Commission and the
Women's Legal Centre Trust, the relief given by the High Courts in both the Bhe and the Shibi cases
falls to be reconsidered. It is now necessary to deal also with the applicability of the order by this
Court to polygynous marriages.
[123.] Although the Court must be circumspect in taking decisions on issues when those affected
have not been heard, the exclusion of spouses in polygynous unions from the order would prolong
the inequalities suffered by those subject to the customary law of succession. An order that best fits
the circumstances must accordingly be made to protect rights.
[124.] An appropriate order will therefore be one that protects partners to monogamous and
polygynous customary marriages as well as unmarried women and their respective children. This will
ensure that their interests are protected until Parliament enacts a comprehensive scheme that will
reflect the necessary development of the customary law of succession. It must, however, be clear
that no pronouncement is made in this judgment on the constitutional validity of polygynous unions.
In order to avoid possible inequality between the houses in such unions, the estate should devolve in
such a way that persons in the same class or category should receive an equal share.
[125.] The advantage of using section 1 of the Intestate Succession Act as the basic mechanism for
determining the content of the interim regime is that extra-marital children, women who are
survivors in monogamous unions, unmarried women and all children would not be discriminated
against. However, as has been pointed out, the section provides for only one surviving spouse and
would need to be tailored to accommodate situations where there is more than one surviving
spouse because the deceased was party to a polygynous union. This can be done by ensuring that
section 1(1)(c)(i) and section 1(4)(f) of the Intestate Succession Act which are concerned with
providing for a child's share of the single surviving spouse and its calculation should apply with three
qualifications if the deceased is survived by more than one spouse. First, a child's share would be
determined by having regard to the fact that there is more than one surviving spouse. Second,
provision should be made for each surviving spouse to inherit the minimum if there is not enough in
the estate. Third, the order must take into account the possibility that the estate may not be enough
to provide the prescribed minimum to each of the surviving spouses. In that event, all the surviving
spouses should share what is in the estate equally. These considerations will be reflected in the
order.
Retrospectivity
[126.] Section 172(1) of the Constitution empowers this Court, upon a declaration of invalidity to
make any order that is just and equitable, including an order to limit the retrospective effect of that
invalidity. The statutory provisions and customary law rules that have been found to be inconsistent
with the Constitution are so egregious that an order that renders the declaration fully prospective
cannot be justified. On the other hand, it seems to me that unqualified retrospectivity would be
unfair because it could result in all transfers of ownership that have taken place over a considerably
long time being reconsidered. However, an order which exempts all completed transfers from the
provisions of the Constitution would also not accord with justice or equity. It would make it
impossible to re-open a transaction even where the heir who received transfer knew at the time that
the provisions which purport to benefit him or her were to be challenged in a court. That was the
position in the Shibi case.
[127.] To limit the order of retrospectivity to cases in which transfer of ownership has not yet been
completed would enable an heir to avoid the consequences of any declaration of invalidity by going
ahead with transfer as speedily as possible. What will accordingly be just and equitable is to limit the
retrospectivity of the order so that the declaration of invalidity does not apply to any completed
transfer to an heir who is bona fide in the sense of not being aware that the constitutional validity of
the provision in question was being challenged. It is fair and just that all transfers of ownership
obtained by an heir who was on notice ought not to be exempted.
[128.] The next issue to be decided is whether it is just and equitable that the order of invalidity
should date back to 4 February 1997 when the Constitution became operative. The question is
relevant because the deceased in Shibi died during 1995, while the interim Constitution was in force.
The impugned provisions in this case became inconsistent with the interim Constitution in 1994
when it came into force. It would accordingly be neither just nor equitable for affected women and
extra-marital children to benefit from a declaration of invalidity only if the deceased had died after 4
February 1997, but not if the deceased had died after the interim Constitution had come into force
but before the final Constitution was operative. I am accordingly of the view that the declaration of
invalidity must be retrospective to 27 April 1994 in order to avoid patent injustice.
[129.] To sum up, the declaration of invalidity must be made retrospective to 27 April 1994. It must
however not apply to any completed transfer of ownership to an heir who had no notice of a
challenge to the legal validity of the statutory provisions and the customary law rule in question.
Furthermore, anything done pursuant to the winding up of an estate in terms of the Act, other than
the identification of heirs in a manner inconsistent with this judgment, shall not be invalidated by
the order of invalidity in respect of section 23 of the Act and its regulations.
The facilitation of agreements
[130.] The order made in this case must not be understood to mean that the relevant provisions of
the Intestate Succession Act are fixed rules that must be applied regardless of any agreement by all
interested parties that the estate should devolve in a different way. The spontaneous development
of customary law could continue to be hampered if this were to happen. The Intestate Succession
Act does not preclude an estate devolving in accordance with an agreement reached among all
interested parties but in a way that is consistent with its provisions. There is, for example, nothing to
prevent an agreement being concluded between both surviving wives to the effect that one of them
would inherit all the deceased's immovable property, provided that the children's interests are not
affected by the agreement. Having regard to the vulnerable position in which some of the surviving
family members may find themselves, care must be taken that such agreements are genuine and not
the result of the exploitation of the weaker members of the family by the strong. In this regard, a
special duty rests on the Master of the High Court, the magistrates and other officials responsible for
the administration of estates to ensure that no one is prejudiced in the discussions leading to the
purported agreements.
The effect of this judgment
[131.] It needs to be emphasised that this judgment is concerned with intestate deceased estates
which were governed by section 23 of the Act only. All such estates will henceforth be administered
in terms of this judgment. The question arises as to the role of the Master of the High Court,
magistrates and other officials appointed by the Master. Section 4(1A) of the Administration of
Estates Act provides that the Master shall not have jurisdiction over estates that devolve in terms of
customary law. The effect of this judgment is to bring about a change in this respect. The Master is
no longer precluded from dealing with intestate deceased estates that were formerly governed by
section 23 of the Act since they will now fall under the terms of this judgment and not customary
law.
132.] The procedure under the Administration of Estates Act is somewhat different to the procedure
under the Act and its regulations. The Administration of Estates Act was recently amended to permit
the Master to designate posts in the Department of Justice to exercise the powers and perform the
duties delegated to them on behalf of, and under the direction of the Master. The same provision
requires service points to be established where these officials may exercise the powers referred to.
The Court has not been informed what steps have been taken by the Master in terms of these
provisions. Section 18(3) of the Administration of Estates Act (somewhat similarly to section 23(6) of
the Act) permits the Master to dispense with the appointment of an executor if the estate does not
exceed a stipulated amount (currently set at R125,000). Section 18(3) also permits the Master to
'give directions as to the manner in which any such estate shall be liquidated and distributed.' The
terms of this provision are broad enough to permit the Master to hold an inquiry to facilitate the
liquidation of the estate as is currently the practice under regulation 3. In the circumstances, I do not
think it inappropriate to order that in future all new estates shall be wound up in terms of the
provisions of the Administration of Estates Act. However, in case such an order causes dislocation or
harm, I include in the order a provision permitting any interested person to approach this Court on
an urgent basis, in the event of serious administrative or practical problems being experienced as a
result of this order.
[133.] It will be necessary, however, that estates that are currently being wound up under section 23
of the Act and its regulations, continue to be so administered to avoid dislocation. The order will
accordingly provide that the provisions of the Act and its regulations shall continue to be applied to
those estates in the process of being wound up. All estates that fall to be wound up after the date of
this judgment shall be dealt with in terms of the provisions of the Administration of Estates Act.
[134.] Finally, a word or two about the High Court judgments in the Bhe and Shibi cases. Both dealt
extensively with the difficult issues which were the subject of the two applications and were of great
assistance to this Court. It will however be necessary to set aside the two High Court orders in order
to accommodate the broadened ambit of the issues canvassed as a result of the application to this
Court by the South African Human Rights Commission and the Women's Legal Centre Trust.
Costs
[135.] No costs have been asked for in this matter and there will accordingly be no order for costs
made.
The order
[136.] The following order is accordingly made:
1. The orders of:
(a) he Cape High Court in the matter of Bhe and Others v The Magistrate, Khayelitsha and Others,
and
(b) the Pretoria High Court in the matter of Charlotte Shibi v Mantabeni Freddy Sithole and Others
are hereby set aside.
2. Section 23 of the Black Administration Act 38 of 1927 is declared to be inconsistent with the
Constitution and invalid.
3. The Regulations for the Administration and Distribution of the Estates of Deceased Blacks (R200)
published in Government Gazette no 10601 dated 6 February 1987, as amended, are declared to be
invalid.
4. The rule of male primogeniture as it applies in customary law to the inheritance of property is
declared to be inconsistent with the Constitution and invalid to the extent that it excludes or hinders
women and extra-marital children from inheriting property.
5. Section 1(4)(b) of the Intestate Succession Act 81 of 1987 is declared to be inconsistent with the
Constitution and invalid.
6. Subject to paragraph 7 of this order, section 1 of the Intestate Succession Act 81 of 1987 applies
to the intestate deceased estates that would formerly have been governed by section 23 of the Black
Administration Act 38 of 1927.
7. In the application of sections 1(1)(c)(i) and 1(4)(f) of the Intestate Succession Act 81 of 1987 to the
estate of a deceased person who is survived by more than one spouse:
(a) A child's share in relation to the intestate estate of the deceased, shall be calculated by dividing
the monetary value of the estate by a number equal to the number of the children of the deceased
who have either survived or predeceased such deceased person but are survived by their
descendants, plus the number of spouses who have survived such deceased;
(b) Each surviving spouse shall inherit a child's share of the intestate estate or so much of the
intestate estate as does not exceed in value the amount fixed from time to time by the Minister for
Justice and Constitutional Development by notice in the Gazette, whichever is the greater; and
(c) Notwithstanding the provisions of sub-paragraph (b) above, where the assets in the estate are
not sufficient to provide each spouse with the amount fixed by the Minister, the estate shall be
equally divided between the surviving spouses.
8. In terms of section 172(1)(b) of the Constitution, the orders in paragraphs 2, 3, 4, 5 and 6 of this
order, shall not invalidate the transfer of ownership prior to the date of this order of any property
pursuant to the distribution of an estate in terms of section 23 of the Black Administration Act 38 of
1927 and its regulations, unless it is established that when such transfer was taken, the transferee
was on notice that the property in question was subject to a legal challenge on the grounds upon
which the applicants brought challenges in this case.
9. In terms of section 172(1)(b) of the Constitution, it is declared that any estate that is currently
being administered in terms of section 23 of the Black Administration Act 38 of 1927 and its
regulations shall continue to be so administered, despite the provisions of paragraphs 2 and 3 of this
order, but subject to paragraphs 4, 5 and 6 of this order, until it is finally wound up.
10. Any interested person may approach this Court for a variation of this order in the event of
serious administrative or practical problems being experienced.
11. (a) In the matter of Bhe and Others v The Magistrate, Khayelitsha and Others:
(i) it is declared that Nonkululeko Bhe and Anelisa Bhe are the sole heirs of the deceased estate of
Vuyo Elius Mgolombane, registered at Khayelitsha Magistrates' Court under reference no 7/1/2484/2002;
(ii) Maboyisi Nelson Mgolombane is ordered to sign all documents and to take all other steps
reasonably required of him to transfer the entire residue of the said estate to Nonkululeko Bhe and
Anelisa Bhe in equal shares;
(iii) The Magistrate, Khayelitsha, is ordered to do everything required to give effect to the provisions
of this judgment.
(b) In the matter of Charlotte Shibi v Mantabeni Freddy Sithole and Others:
(i) it is declared that Charlotte Shibi is the sole heir of the deceased estate of Daniel Solomon Sithole
registered at Pretoria North Magistrate District of Wonderboom under the reference no 7/1/2410/95;
(ii) Mantabeni Freddy Sithole is ordered to pay Charlotte Shibi the sum of R11,505.50;
<!--[if !supportLists]-->(iii) <!--[endif]-->Jerry Sithole is ordered to pay Charlotte Shibi the sum of
R11,468.02.